Issues concerning libraries and the law - with latitude to discuss any other interesting issues Note: Not legal advice - just a dangerous mix of thoughts and information. Brought to you by Mary Minow, J.D., A.M.L.S. [California, U.S.] and Peter Hirtle, M.A., M.L.S. Follow us on twitter @librarylaw

Fortney: When I switched from practicing the law to just occasionally wanting to get at it, it became painfully obvious to me how expensive it is and how hard it can be to find. There's no good reason for that. One of the roadblocks is states claiming copyright in their laws, and this paper discusses why they do that, and why they shouldn't. It also mentions some of the great sites out there - like Justia, Public.Resource, and LII - that are already working on making primary legal materials accessible online from your home and public library.

Minow: Did you choose SSRN because you are looking for readers' comments? If so, what kinds of comments do you hope to get?

Fortney: Sure. I wondered if what I wrote might be a little too legal for a general audience, and a little too general for a legal audience. As someone who straddles two fields and hasn't done a lot of writing in either of them yet, I thought it would be helpful to step away from it myself for a while and see if i could get the benefit of others' perspectives. I'd like to know things like how readable it is to non-lawyers, whether this is an issue people are generally aware of already, and what kind of added information might be helpful.

1. In writing about the Max Planck study on use of images that I discussed earlier, copyright litigator Ray Dowd rips into the licensing practices of libraries, archives, and museums:

In recently researching a case of Nazi looted art, I have been
frustrated by non-profit institutions blocking access to copies of
documents necessary to trace Nazi-art looting practices in Switzerland.
One institution was the Getty blocking access to an official government
report, another a German museum claiming that I had to get copyright
permission from a deceased Swiss art dealer to make copies of his
correspondence with the Nazi regime. Each institution was informed that
the documents were for use in an impending court case.

My
feeling is that any restrictions on scholarly use of public domain
materials by an entity that enjoys tax-free status is presumptively a
violation of the public trust, and a restriction of the public domain
that conflicts with the complete preemption of copyright law. (emphasis mine)

The documents that Dowd cites may have been copyrighted. His post, though, reminds us that cultural heritage institutions must make sure that they are not themselves creating unreasonable boundaries to scholarship.

2. Sage Ross, a graduate student in the History of Science, has a blistering attack on the Huntington Library's efforts to charge different prices for different uses of a public domain work: a photograph of Charles Darwin.
He "politely but forcefully called them out for abusing the public domain
and called their policy of attempting to exert copyright control over a
public domain image 'unconscionable'." Others have picked up on the story here and here. (Thanks to Klaus Graf for the second link.)

I don't have any problem with the Huntington charging whatever it wants for digital files of public domain works. And if it wants to charge different fees for different uses, that is its prerogative. Trying to impose limitations on down-stream uses of public domain works is more problematic. They would be difficult to enforce, inconvenience the good guys who respect them but do little to stop the bad actors, and in the long run are pointless. For example, this image is supposed to be a rare photograph over which the Huntington might have a monopoly. But I found 21 examples on the web using TinEye, one of which appeared in the NY Times and is credited to "Richard Milner/European Pressphoto Agency."

3. Jason Mazzone's book Copyfraud and Other Abuses of Intellectual Property is due out from the Stanford University Press in 2009. Mazzone's 2006 article on the topic erred in suggesting that most libraries and archives claim copyright (rather than contractual rights) over the use of images from its collection. Nevertheless, Mazzone's indictment of the practices of cultural institutions is powerful. Libraries, archives, and museums will need to have reasonable practices in place if they wish to avoid criticism when the book does appear.

I have been enjoying following the historical cat-fight that first appeared on the front page of Sunday's NY Times and which has spilled over into blog entries and comments (summarized nicely by HNN - the reaction to Stan Katz's posting is particularly brutal). The controversy concerns whether historian Stanley Kutler intentionally made mistakes in transcribing Nixon White House tapes in order to downplay the role that John Dean played in Watergate.

I have no idea who is right on the historical questions, but I have been fascinated by some of the copyright questions that are just below the surface. Two in particular stand out:

1. The Times reported that the controversy had arose at this time "because an article detailing the charges against Mr. Kutler has been
submitted to the American Historical Review, the profession’s premier
journal." According to the article, Peter Klingman, the author of the article, would not comment "because of pre-publication rules."

Some have speculated that the AHR - in apparent violation of its policy - might have been the source of information for the article, a charge that has been persuasively dismissed by Rick Shenkman in an article for HNN. I was more shocked by the reported policy itself. Does the AHR really subscribe to the controversial Ingelfinger Rule that prohibits pre-publication distribution or even discussion of medical topics? What about the idea that scholarship is improved when drafts of papers can be shared with colleagues and presented at conferences prior to submission for publication? Why isn't the unrefereed manuscript available through an institutional repository or preprint server?

In looking at the matter more closely, it appears that (surprise!) the NY Times may have gotten it wrong. The AHR's submission policy states "No manuscript will
be considered for publication if it is concurrently under consideration
by another journal or press or if it has been published or is
soon to be published elsewhere." There is no mention of whether the AHR considers posting the unrefereed manuscript to a server to constitute "publication" (as does the Lancet and a few other medical journals), but the context of the statement would seem to suggest that it is formal publication that is at issue.

So let's hope that Klingman is just hiding behind a non-existent AHR policy to keep from having to speak to the press. Historians have long recognized the advantages of sharing hard copies of their work with colleagues prior to submission, and services such as ArXiv have proven how important electronic distribution of pre-refereed copies can be. This is no time to adopt the kind of practices that have plagued medical publishing.

2. The other issue appears in Shenkman's article, "The Watergate Transcript Controversy: The Story Behind the Story." Shenkman reports that Kutler declined to give an unnamed antagonistic researcher permission to quote from the transcripts published in Kutler's book, Abuse of Power. Kutler is quoted from an email to HNN: "Not very fraternally of me, I will admit... but why did he think he had license to incorrectly
malign me, and then expect me to [do] him a favor?"

Jeremy Young at the Progessive Historian's blog has the proper reaction when he asks "Why did Kutler have the right to refuse access to his published transcripts." Young speculates that the quotes might be longer than would be allowed under fair use.

I wonder what copyright interest Kutler might think he has in the transcripts. The preparation of a transcript would appear to be the kind of classic "sweat of the brow" work that Feist concluded was not eligible for copyright protection. It might be hard work understanding what is happening on the tapes, and it may require great skill to prepare the transcript, but it would still lack the creativity needed to secure a copyright - unless, as Kutler's critics maintain, he was making it up.

I often rail against archives and libraries that assert rights where none exist. It is no less troublesome to see historians doing the same.